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The Chairman: Mr. Drew's name is attached to amendment No. 190, so I apologise for not calling him earlier.
Mr. David Drew (Stroud) (Lab/Co-op): I readily accept your apology, Mr. Gale, and I welcome you to the Chair. I know that you might have wanted to participate in the debate but, given the independence of your position, you will have to listen while the rest of us pontificate.
I shall speak to amendment No. 190, but I do not want to delay the Committee. I hope that that will be the nature of all our debates in the next eight sittings. In line with my hon. Friend the Member for Cleethorpes (Shona McIsaac), I wish to tease out some information from the Minister—a theme that will be consistent in our debates as, by its very nature, it is an enabling Bill—about some of the other changes that might be made through secondary legislation. It will be a question of ''if and when'', and perhaps ''why not?''.
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Some of us believe that there is evidence that cephalopods are capable of suffering pain, and therefore that there is no reason why we should not afford them the same protection as vertebrates. There are some other issues, which I hope the Government will consider once the scientific evidence is available, that can be included via the secondary legislative route to give cephalopods and perhaps crustaceans similar protection.
The Animals (Scientific Procedures) Act 1986 already includes cephalopods as a protected species, so I want to know why we cannot have some consistency in our legislation. That clearly would be a logical step. It would be good also to have some consistency with legislation in Scotland; I gather that a similar Bill in Scotland is likely to include non-vertebrates as being worthy of protection. Changes are taking place on the continent, too, and it would seem sensible that we have consistency of legislation. Even from my position—as my hon. Friend the Minister knows, I am not the most avowed pro-European—we still need consistency across national borders; otherwise, legislation could end up being undermined, because people would move animals for the most bizarre of reasons, but we would not have the enforcement of the law to protect them, given the various things they do that we would not want them to do.
With that, I shall sit down, but I hope that the Minister will rehearse some of the arguments that he will no doubt have to rehearse again. If we hear them now, perhaps we shall not need to keep prompting in the same way.
Mr. Bradshaw: I am grateful to the hon. Members who have tabled the amendments; it is useful to have a discussion on where we draw the line on the definition of ''animal'' for the purposes of the Bill.
Under the power in clause 1 (3), an invertebrate must be capable of experiencing pain or suffering before being included in the Bill. That criterion has been adopted to ensure consistency with the requirements for the commission of offences under the Bill, which entail the consideration of concepts of pain and suffering. At present, the Government do not consider that there is sufficient evidence of invertebrates' ability to experience pain or suffering to justify extending the Bill to cover them.
I shall explain why. Current evidence on cephalopods is weak on two important points—first, on whether they possess a brain structure comparable to the human cerebral cortex. That is important because the cerebral cortex has an important role in conscious awareness in humans, other mammals and vertebrates, and conscious awareness is a pre-requisite for the experience of pain and suffering. Secondly, the evidence is weak on whether cephalopods' responses can be modified by analgesics, the substances that relieve pain. Those criteria are two of seven developed by the institute of medical ethics and, taken together, they can be used to determine whether an animal can experience pain.
The hon. Member for Leominster raised a couple of examples of Governments including cephalopods in
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legislation. He is right to say that they have done so in New Zealand and in some states of Australia, although crustaceans have not been included. I think I am right in saying that Norway has legislation, or is proposing it, to include crustaceans, but not cephalopods—a position that we find rather odd, as we think that the case for including cephalopods is slightly stronger than that for including crustaceans. We believe that the evidence on crustaceans is even weaker; they have what are called distributed nervous systems and no higher brain structure, so they are unlikely to be capable of conscious emotional processing.
Currently, there is not sufficient evidence to include any invertebrates in this Bill. However, none of us knows what the scientific evidence will be in 20 or even two years' time. The Protection of Animals Act 1911 Act failed to do so, but this Bill aims to create flexibility to respond to changes in society's values or scientific knowledge. It would not be in keeping with that principle if we were unable easily to extend the definition of ''animal'' if the appropriate evidence became available.
Norman Baker: Before the Minister discusses the future of the definition, may I ask whether he has examined the evidence from the European Food Safety Authority's report of December 2005? On the specific issue of whether to include cephalopods, the report said that those animals can experience, and learn to avoid, pain and distress—for example, they can learn to avoid electric shocks. If they can decide to avoid electric shocks, they can clearly experience pain from them, and they seek to distance themselves. Does that not meet the Minister's first requirement?
Mr. Bradshaw: I am about to come on to the very point that the hon. Gentleman raised in his initial remarks and has subsequently re-raised. He was right to draw the attention of Committee members to the ongoing review of directive 86/609 on the protection of animals used for experimental and other scientific purposes. It may help if I give a couple more details about that to Committee members who may not be as aware of the issue.
On 22 December last year, the European Food Safety Authority published the opinion of the animal health and welfare panel on four questions, including on some invertebrate species' sentience and capacity to feel pain, suffering or distress. That report is now with the Commission, which will draft proposals. Those will be consulted on and then go to the European Parliament for consideration. I assure the Committee that we shall closely monitor the review and ensure that it is considered as we examine the exclusion of invertebrates in future.
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The hon. Gentleman also mentioned the status of cephalopods under the Animal (Scientific Procedures) Act 1986, as did my hon. Friends the Members for Cleethorpes and for Stroud (Mr. Drew). To correct what my hon. Friend the Member for Stroud said, only one species of cephalopod is included in the
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legislation, namely octopus vulgaris. He asked what the difference was between the Act and this Bill. One crucial difference is that it is more understandable to adopt a precautionary principle where animals are used for scientific procedures. In practice, octopus vulgaris is not currently used in scientific procedures in this country.
It should also be remembered that the legislation proposes some quite serious criminal sanctions for people who break the law, so a burden of proof will be required. I think I am right in saying that no one has been prosecuted under the 1911 Act for inflicting suffering on fish, although they are included in the Act, because nobody believed that it was possible to satisfy the burden of proof. The Government framed the Bill so that it will be possible to satisfy the burden of proof when there is a prosecution. That is a different consideration from what one would want to bear in mind with the Animal (Scientific Procedures) Act, and the European legislation to which the hon. Member for Lewes referred earlier.
A number of hon. Members also highlighted the EFRA Committee's recommendation based on that Committee's belief that a strong case had been made for inclusion. The Committee also acknowledged that
''we have received insufficient evidence on which to base a final conclusion on this matter.''
That is where the Government stand. As I have tried to reassure hon. Members, we believe the Bill gives the flexibility for extension in future to cephalopods and crustaceans, and even others. We have gone some way already in extending the scope of the Bill by including fish and amphibians, bearing it in mind that until now it has been difficult to prove suffering in such cases before the courts. Subsection (3) contains the important power to amend or extend the range of animals to which the Bill applies.
On that basis I urge that the amendment be withdrawn.
Bill Wiggin: The Minister made an elegant argument, rather as I suspected he would. I have no problem in withdrawing my own amendments, as there are drafting errors and I prefer amendment No. 190, which the hon. Member for Stroud tabled. However, the Bill's purpose should not be simply to create a legal framework, but to set an example to our society that neglecting one's animals or treating them cruelly is not acceptable, whether they be wood lice or higher beings. One can buy spiders and scorpions in pet shops, and those animals are excluded from the Bill.
I do not think that anyone really doubts that all creatures can feel pain, because pain is a protectionist sensation designed to stop beings from hurting themselves consistently. I do not think that there is any real doubt about that. However, we must set an example in how we consider the issue. I take the point about conscious awareness, but I do not think that the debate about analgesia is particularly relevant. We should look at the other recommendations of the Select Committee, which said that there should be a code of practice for the treatment of crabs and lobsters, particularly before they are eaten and while they are still alive.
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We are trying to achieve various things through the amendments. I would be much more content if the Minister would tell us his programme for evaluating invertebrates. The Bill has the flexibility to include them, but I think that we would all be content if we could do that in a more prescribed manner. I do not mind withdrawing my own amendments, but I think that amendment No. 190 has great merit. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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